Pham (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant sought review of a decision concerning whether they and their sponsor were spouses for the purposes of the *Migration Act 1958* (Cth) and its associated Regulations. The core dispute revolved around whether the parties were in a genuine and continuing married relationship at the time of the visa application and at the time of the decision. The review was heard by Cheryl Cartwright.

The legal issues before the Tribunal were whether the applicant and the sponsor were spouses as defined by section 5F of the Act, and whether they continued to be in a genuine married relationship at the relevant times. This required consideration of whether the parties were validly married, and if so, whether they demonstrated a mutual commitment to a shared life to the exclusion of all others, lived together or not separately and apart on a permanent basis, and whether the relationship was genuine and continuing. The Tribunal was required to have regard to all circumstances of the relationship, including financial, household, and social aspects, as well as the nature of their commitment, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married, as evidenced by a registered marriage certificate. It also noted the extensive documentation provided by the applicant, including bank statements, evidence of joint property purchase, statutory declarations from friends and relatives, and photographs depicting social and family situations, which addressed the financial, household, and social aspects of the relationship, as well as the nature of their commitment. However, the Tribunal concluded that the matter had not been fully determined and that the application should be remitted for reconsideration.

The Tribunal remitted the application for the Partner (Temporary) (Class UK) visa, subclass 820, with a direction that the applicant met the criteria specified in clauses 820.211(2)(a) and 820.221(1)(a) of Schedule 2 to the Regulations.